Classical forced administration vs. indirectly forced administration
Indirectly forced administration |
Classical forced administration |
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1
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Operations are negotiable between insolvency administrator and creditor. Both parties are free from ZwVwV (German law).
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The administrator and his operations are subject to the legislation of the ZwVwV (German law).
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2
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The (insolvency) administrator has to take possession of real estate and subsequently, has to collect the income from rent and lease as well as ensure sufficient insurance.
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The (forced) administrator has to take possession of real estate and subsequently, must primarily collect income from rent and lease as well as ensure sufficient insurance.
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3
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The (forced) administrator has to take possession of real estate and subsequently, must primarily collect income from rent and lease as well as ensure sufficient insurance.
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Repairs and maintenance are obligatory. Expenses, which are not part of ordinary maintenance shall be approved by the court.
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4
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The insolvency administrator can claim compensation for use from the debtor. (Higher Regional Court Nuremberg, verdict of 24 June 2005 - 5 U 215/05)
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The debtor is permitted to continue to use the property free of charge (§ 149 ZVG).
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5
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Deposits, which are not separated onto deposit savings accounts by the debtor, are a claim in insolvency proceedings and do not have to be paid out by the administrator.
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The forced administrator is obligated to transfer credit from utility cost invoices from the period of time before the day of distraint to tenants. (§148 ZVG, § 152 ZVG; verdict Federal Court of Justice VIII ZR 333/02) The transfer is borne by ZwV mass/ creditors.
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6
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Kautionen, die durch den Schuldner nicht auf Kautionssparkonten separiert wurden stellen eine Insolvenzforderung dar und müssen durch den Verwalter nicht ausgezahlt werden.
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The administrator is obligated to pay back the deposit, irrespective of whether the debtor has not invested or spent it. Federal Court of Justice of 16 July 2003 - VIII ZR 11/03, NZM 2003, 849; Federal Court of Justice of 9 March 2005 - VIII ZR 330/03, NZM 2005, 596). Furthermore, the administrator is obligated to save and (re-) invest deposits spent by the debtor from advance payments of the creditor during current leases, pursuant to specifications of § 551 Paragraph 3 BGB (Federal Court of Justice of 11 March 2009 - VIII ZR 184/08, NJW 2009, 1673).
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7
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For new leases, rent deposits paid by tenants, must be invested as seperate rent deposit savings accounts (pass books), pursuant to § 551 BGB and are to be held in trust. This also applies for rent diposits which were taken over.
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For new leases, rent deposits paid by tenants, must be invested as seperate rent deposit savings accounts (pass books), pursuant to § 551 BGB and are to be held in trust. This also applies for rent deposits which were taken over.
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